Warren pitches arts to music industry — On Monday, the Fair Play Fair Pay Act was introduced, which would, among other things, finally extend the sound recording public performance right to terrestrial radio. Senator Elizabeth Warren echoed the goals of that bill in an address later in the week at the annual Grammys on the Hill event, saying “The way I see it is that it is very important that Congress support music and the arts and that we do it both with good laws in terms of making sure that people are fairly compensated — that compensation is fairly divided.”

Protecting Copyright: Securing Rights and Improving the Copyright Office — From the Free State Foundation: “With this volume of copyright registrations and recordations, and the social and economic benefits associated with these processes, it is important the vital Copyright Office functions be carried out effectively and efficiently. These basic functions serve to secure copyright protection, provide constructive notice of copyright claims, and establish priority between conflicting transfers of rights.”

Library of Congress’s and Copyright Office’s IT Needs Upgrade, Says GAO — From the Authors Guild: “In its report on the Copyright Office’s information technology, the GAO stated that the Copyright Office’s mission is ‘hindered by technical and organizational challenges,’ corroborating what many have identified as a main challenge to the Office fulfilling its mission.”

Appeals Court Agrees to Review Sirius XM’s Challenge Over Pre-1972 Music — The Second Circuit appeal arises out of a Southern District of New York ruling that the public performance of pre-1972 sound recordings is protected under New York state copyright law. “SiriusXM is presenting two questions to the 2nd Circuit. First, ‘Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?’ … Second, ‘Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?'”

Perhaps one of the last individuals you’d expect a book on copyright to come from is Elizabeth Wurtzel.

But that’s indeed what the author of Prozac Nation has done with Creatocracy: How the Constitution Invented Hollywood. Through a breezy 121 pages from Thought Catalog Books, Wurtzel provides an interesting and provocative defense of authors’ exclusive rights and commercial culture.

The defining characteristic of America is our fanaticism: We dream big, we think large, we create granderu. We invented Hollywood, rock ‘n’ roll, blue jeans, the Gold Rush, cable TV with thousands of channels, a military that is larger than those of the next ten combined, the shopping mall, and a store that sells nothing but socks.

Against this backdrop, Wurtzel takes us to the beginning of the American republic to look at the development of copyright. And her thesis is this: the Founders chose to encourage art, science, and knowledge through the marketplace—rather than government subsidy or patronage—and this choice has proven successful, creating a vibrant commercial culture.

In establishing at the outset that all creative people would be at the mercy of the marketplace, the Framers invented a uniquely American form of creativity, which is commercial, widely appealing, and inevitably the stuff of empires. The Constitution is the force behind Hollywood and Silicon Valley, behind rock stars and rocket scientists, behind everything we love and everything we love to hate.

Wurtzel traces the path by which the Constitution established Congress’s authority to promote art and science through copyright. I was initially skeptical when I saw she would be taking us through history—much intellectual property (IP) scholarship has trouble with history. But Wurtzel’s recount of the history is adept. At the same time, she shows a canny ability of anticipating and responding to common criticisms of IP in academia. For example, she devotes one chapter to the IP views of Thomas Jefferson, who is often put forward as an arbiter of IP minimalism. But as Wurtzel notes, Jefferson’s views were far more nuanced than such proponents allow, and regardless, he had little to do with the shaping of the federal IP power.

When not recounting us with history, Wurtzel celebrates talent and pop culture, describing the mass market of culture enabled by copyright as producing “the most commercially inventive and artistic country ever.” Peppered throughout are observations about the nature of the creative process, no doubt drawn from Wurtzel’s own experience.

It has always been difficult to be a successful creative person, because talent is rare, but the rewards were good. They had to be. Consider how boring most people are. Consider how often you sit and talk to someone and wish you could leave because he is not interesting at all. Then think about a book you can’t put down and hope will never end: The author is not even in the room and is only holding your attention with words on a page, but he has you trapped and you don’t want to ever escape. Most people, using everything they have in real life, cannot take hold of you the way a talented writer can without even being there. Talent is the ability to mesmerize people when you are nowhere near. Talent is the ability to make something that is more stunning than human presence.

Wurtzel centers in on the market as an essential element in translating such talent into great works. In chapter 13, she writes that “The greatest of the great American art forms have been done in factory settings, with profit in mind.

[S]ongs written by teams in rows of rooms in the Brill Building or in cubicles in the Motown studios are as emotionally resonant and haunting as the dark part of the night when the sky is big and there are no stars, no moon, and all is terrifying. Talented people do not need atmosphere to work. They do not need inspiration. They just need time and payment. They need to treat what they do like a job. They need to show up. Writing the Great American Novel has more in common with coal mining than it does with keeping a journal—it is hard labor, long and intense.

The commercial creativity enabled by copyright is indeed successful, both economically and culturally. And it is not all pop songs and Transformer films, because of one of the benefits that emerges from successful creative industries: the subsidization of riskier, more challenging work.

To give one example: actress Kristen Stewart is best known for her role in the blockbuster Twilight films. She most recently starred in the decidedly non-blockbuster film Clouds of Sils Maria. Glenn Kenny of Rogerebert.com says of the role:

The young actor, who catapulted to worldwide fame in the “Twilight” series, has, like her co-star Robert Pattinson, been using the clout that such stardom brings to effectively branch out as a performer. In the contemporary movie business, the transaction works both ways: big young star stretches creative muscles by signing on to challenging, filmmaker-driven projects; challenging, filmmaker-driven projects get their financing because a young star who wants to stretch his or her creative muscles has signed on to it.

It is true that patronage or government subsidy can also fund challenging and artistically relevant projects, but nothing like on the scale that the market could provide.

Creatocracy is not perfect. Wurtzel meanders from the main point at times. These diversions are meaningful, don’t get me wrong, but with such a short book, they could stand to be more tightly edited perhaps.

But overall, it is an interesting and compelling defense of copyright from a perspective not typically seen in academic or policy circles. The result is a book that should appeal especially to lay audiences. You may not necessarily agree with absolutely everything Wurtzel says (I didn’t), but it an absolute delight to hear her say it.

Is There a Fundamental Right to Intellectual Property? — Rob Merges says “yes,” beginning with John Rawls’ principles of fundamental rights. Merges argues that these principles justify property in general and intellectual property specifically. He concludes by pointing out that, consistent with his approach, the European Court of Human Rights recognizes intellectual property as a human right.

Letter from Register of Copyrights Pallante to Ranking Member Conyers — In a response to a request for views on the recent House Judiciary Committee hearing that focused on the functions and resources of the US Copyright Office, the Office writes that the nation’s long term copyright interests “would be served best by establishing an independent copyright agency to administer the law, and by designating a leader that is appointed by the President with the advice and consent of the Senate.”

Judge Rules ‘Three’s Company’ Parody Play to Be Fair Use — A thorough court decision finding a play that critiques and subverts the characters and situations of the hit 70’s show Three’s Company not infringing. “The former has turned the latter into a nightmarish version of itself, using the familiar Three’s Company construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena.”

The Man Who Makes Hollywood’s Smallest Sounds — A fantastic portrait of 30 year film veteran Gregg Barbanell. “Barbanell is a Hollywood ‘Foley’ artist, a member of a small, highly-skilled group of experts who add custom sounds into television and film scenes in post-production, using a bevy of makeshift props. Named after one of film’s earliest sound pioneers, Foley is an antiquated craft—and in a digitized era of cinema, it is one of the last of the industry’s ‘low-tech’ jobs. These folks are responsible for recording nearly every footstep and prop sound in the movies—the things that you never really notice, yet bring a scene to life. It’s at once one of the most important elements in film, and the most overlooked. Unlike sound effects editors, Foley artists don’t rely on libraries of pre-recorded sounds: they perform them ‘ive,’ using creativity, intuition, and a small dose of physics.”

Nigeria: ‘Copyright piracy is a cyber security matter,’ says President Goodluck Jonathan — “President Jonathan was asked about the government’s plans to curb piracy and address the issue of royalties. In his response, the President first displayed an understanding of the economic rights aspect of copyright and appreciated the importance of Nigeria’s entertainment industry. He then rightly acknowledged that piracy can only be minimised (not eradicated), and said his administration had just launched three security strategy documents, one of which considers piracy a security matter.”

Robert Kastenmeier, Liberal Voice in House for 32 Years, Dies at 91 — “But his central focus was intellectual property — copyright, patents and trademarks. He was the author of 48 laws in that area, 21 of them dealing with copyright. Many reflected technological advances. The landmark 1976 bill set rules governing radio, television, photocopying, tape recording, microfilming and computer storage, breaking a 15-year logjam on a subject that bored most lawmakers.”

Putting authors at the heart of the digital economy — A new white paper from the Society of Audiovisual Authors looks at the rights and remuneration of authors in Europe. “Copyright is the moral link that connects the author to their work. It’s also their remuneration and creative financing tool. In a Europe of diverse cultures, traditions and languages, authors have fought to be able to express themselves in their own language, without being forced into exile in order to complete their projects.”

Beyond Free Trade vs. Protectionism — “In the 21st-century knowledge economy, this means agreements that allow for effective intellectual-property enforcement and prohibit new mercantilist practices (such as forced technology transfer, data-residency requirements, and standards manipulation). It also means our nation should neither be indifferent to its industrial mix nor try to preserve its existing mix indefinitely. Rather, trade policy should be a means to drive U.S. global competitiveness in the knowledge-based industries of the future. In other words, computer chips are more important than potato chips.”

How Digital Filmmaking Destroyed Screenwriting — “Cheap digital production closed the doors of distributors to low-budget projects, in a way that didn’t exist in the days of film. The internet devalued content to the point that it was no longer possible to make a profit on an independent film. The DVD-premiere market collapsed and was replaced by VOD (that provides tiny returns on film in comparison). DIY distribution via social networking has failed to create careers, simply because everyone talks and nobody listens.”

Spain: Did the “Google Tax” really change the market? — Míchel Olmedo Cuevas writes, “it seems that the Spanish experience is closer to that of Brazil, where national newspapers amounting for 90% of the traffic dropped out of Google News almost three years ago, and do not seem to be looking to make a comeback since, according to the newspapers association, only 5% of overall traffic was lost, after 135 out of 154 newspapers decided to leave the news aggregation service provided by Google.”

Google v. Oracle: The Curse of Being Popular? — Thomas Young has a look at the “lock in” argument raised by Google in its petition to have the Supreme Court review a decision finding it liable for copying Oracle’s Java software. “The (perhaps unintended) thrust of Google’s argument is that downstream factors, such as how consumers interacted with the work, could impact whether copyright protection ever attached to the work in the first place. This notion would carry a steep price for copyright holders; namely, that user considerations, such as popularity or familiarity, could eventually invalidate their copyright interests and force their works into commons.”

How the jury in the ‘Blurred Lines’ case was misled — And copyright luminary Wendy Gordon has her take on the verdict. She argues that the instructions provided to the jury did not adequately explain the law and wrongly supported the notion that any copying is infringement.

World IP Day 2015 – Get up, stand up. For music. — Mark your calendars, World IP Day is on April 26, and this year, the theme is music. “What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

Guild Joins Organizations in Protesting the “Code of Best Practices in Fair Use” — This week, a number of visual arts organizations, representing thousands of professional creators, published a letter criticizing a recently published code of best practices for failing to collect input from a major segment of the visual arts community and coming to the unfortunate conclusion that “copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace.”

On March 9, a group of 31 advocacy groups and 13 academics sent a letter to members of the 114th Congress, “Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda” (which was a response to a previous letter from over 60 groups and academics calling for continued support of copyright protections). The letter called on Congress to “seek the appropriate balance in copyright law to unlock the innovative and creative spirit of all people to their fullest potential,” which sounds good in general. However, the specific points of the letter reveal that the signers embrace an impoverished view of copyright that would result, ultimately, in an imbalance.

One of the points made by the letter is as follows:

The U.S. Constitution grants Congress the right to create copyright laws “to promote the Progress of Science and useful Arts.” Congress’ power to enact copyright regulation is a limited power under the U.S. Constitution. In the words of the Supreme Court, “The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts.” We strive to uphold the honored, privileged legal place granted to those who discover and create.

This particular strain of thought, establishing a dichotomy between an author’s reward and the promotion of progress, with the latter trumping the former, can be traced back to the Court’s earlier decision in Fox Film v. Doyal1286 US 123 (1932). (and is based on a misreading of that opinion). In US v. Paramount Pictures, the Court cited to Fox Film when it said, “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.” 2334 US 131, 158 (1948).

The letter fails to mention that the Supreme Court has expressly rejected this characterization of copyright.

Justice Stevens quotes Paramount in his dissent in Eldred v. Ashcroft, drawing a sharp rebuke from the majority, which said

JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law, understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.” 3537 US 186, 212 n.18 (2003).

The distinction between the two views is subtle but important. The view of balance expressed in the letter sees the rights of creators and copyright owners on one side of a scale and the rights of users and the public on the other. 4See, e.g., Public Knowledge, Principles for a Balanced Copyright: “The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways to access existing works. Encouraging technological innovation and preserving consumers’ rights thus go hand in hand”; EFF, Fair Use and Intellectual Property: Defending the Balance: “Ideally, intellectual property law—generally, copyright, patent, and trademark—is supposed to embody a balanced incentive system. Copyrights and patents, for example, are supposed to encourage authors and inventors to create new things by helping them receive some compensation for that investment. At the same time, copyright and patent law put limits on authors’ and inventors’ rights, such as fair use (for copyright) and limited terms of protection, to help make sure that IP rights don’t unfairly inhibit new creativity.” In one sense, the view reveals an anxiety over property rights. It embraces a view of property that sees individual rights as separate from the public interest, with individual rights protected as property only to the extent they do not interfere with the public interest. In other words, individual rights are only begrudgingly tolerated.

But the second view—the one embraced by the Supreme Court in Eldred—recognizes that prioritization of property rights not only does not come at the expense of the public interest but is in fact essential to promotion of the public interest.

The Public Interest of Property Rights in History

This concept has been recognized historically. In Wealth of Nations, Adam Smith wrote, “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.” 5Book I, chap. 2, para. 2. In one of his most cited passages, Smith observes that the public interest emerges from self-interest. “By directing that industry in such a manner as its produce may be of greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. 6Book IV, chap. 2, para. 9. The promotion of the public interest is thus inherent to the pursuit of self-interest and not something solely external to it.

James Madison explicitly recalled Smith when discussing copyright. “The public good fully coincides,” he said of the Copyright Clause in the Federalist Papers, “with the claims of individuals.” 7Madison was instrumental both in the Continental Congress’s recommendation to the states to pass copyright legislation after being “persuaded that nothing is more properly a man’s own than the fruit of his study” and to the inclusion of the power to secure copyrights in the federal Constitution. See, generally, The Copyright Clause: American Independence in Literature. This is remarkable in that not only was the coincidence of public interest and individual property rights recognized since the founding of the US but that that recognition extended to intellectual property.

Turning back to Eldred, the majority reiterates this point, this time responding to a dissent by Justice Breyer:

JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones. 8537 US 186, 212 n.18 (2003).

Conceptual and Normative Role of Property and the Public Interest

More recently, scholarship has described how property rights serve public values both conceptually and normatively. In Property’s Ends: The Publicness of Private Law Values, Cornell Law professor Gregory Alexander covers both grounds. Conceptually, Alexander argues what Smith, Madison, and the Supreme Court has observed: that the private and public values of property “cohere rather than conflict.” Normatively, Alexander proceeds from the claim that the normative foundation of private property is human flourishing, which, “understood as morally pluralistic, includes both private and public values.” Thus, “the relationship between private property and public values should be seen as symbiotic rather than antagonistic.” Alexander concludes that “any account of public and private values that depicts them as categorically separate is grossly misleading. One important consequence of this insight is that many legal disputes that appear to pose a conflict between the private and public spheres or that seemingly require the involvement of public law can and should, in fact, be resolved on the basis of private law—the law of property—alone.”

In The Right to Include, Notre Dame Law professor Daniel Kelly provides an additional, seemingly counter-intuitive, insight to this narrative. Though the right to exclude is central to property, it does not, as many contend, lead to individualism and exclusion at the expense of public values. In fact, property promotes inclusion through a variety of mechanisms, including contracts and co-ownership. Without the protection of property and availability of inclusion mechanisms, owners of resources face opportunism by others, leading to less than optimal inclusion. To put it another way, resource owners won’t fully use their property in socially valuable ways without secure property rights and legal mechanisms for inclusion because they face the risk of being taken advantage of by others. Kelly argues that “By providing owners with a range of options by which to include others, these forms help to ensure that an owner’s private incentive to include converges with the socially optimal level of inclusion.” Says Kelly,

Some owners may misuse their property by imposing social costs on others, isolating themselves from others, or discriminating against others. But many owners decide to use their property not only as a “wall” to exclude others but also as a “gate” to include their neighbors, friends and family, colleagues and customers, and even strangers who need help. If so, property is capable of promoting human sociability, not merely atomistic individualism.

Privacy and Copyright

In addition to property, it is worth pointing out similar ideas in the context of privacy, since privacy shares historical and philosophical foundations with copyright. 9See, for example, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (“the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy”). Both provide an individual with some control over an intangible thing that originates from their self. Intuitively (and ostensibly) privacy would seem to protect a private right, shielding the individual from societal intrusions. However, noted privacy scholar Daniel Solove has argued that privacy is not necessarily “an individualistic right,” and points to others who have contended that “privacy harms affect the nature of society and impede individual activities that contribute to the greater social good.” 10A Taxonomy of Privacy, 154 U Penn L. Rev. 477, 487-88 (2006). Elsewhere, Solove writes:

Society involves a great deal of friction, and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocating, and it might not be a place in which most would want to live. When protecting individual rights, we as a society decide to hold back in order to receive the benefits of creating the kinds of free zones for individuals to flourish. 11Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 745, 762 (2007).

Promoting the Progress

The rights of creators and the public interest are not separate concepts that require balancing. Rather, they coincide through copyright. By securing the economic and moral rights of expressive works, authors will maximize the value of their creative labors, and companies will maximize their investments, creating and disseminating works which promote the progress of art, science, and knowledge. That’s not to say there is no need for limitations and exceptions to copyright in certain situations—there certainly is (as with any property right). But it is important to start from the correct baseline by recognizing the inherent public values of property and copyright.

See, e.g., Public Knowledge, Principles for a Balanced Copyright: “The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways to access existing works. Encouraging technological innovation and preserving consumers’ rights thus go hand in hand”; EFF, Fair Use and Intellectual Property: Defending the Balance: “Ideally, intellectual property law—generally, copyright, patent, and trademark—is supposed to embody a balanced incentive system. Copyrights and patents, for example, are supposed to encourage authors and inventors to create new things by helping them receive some compensation for that investment. At the same time, copyright and patent law put limits on authors’ and inventors’ rights, such as fair use (for copyright) and limited terms of protection, to help make sure that IP rights don’t unfairly inhibit new creativity.”

Madison was instrumental both in the Continental Congress’s recommendation to the states to pass copyright legislation after being “persuaded that nothing is more properly a man’s own than the fruit of his study” and to the inclusion of the power to secure copyrights in the federal Constitution. See, generally, The Copyright Clause: American Independence in Literature.

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537 US 186, 212 n.18 (2003).

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See, for example, Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (“the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy”).

Free trade benefits businesses here in Tennessee — David Macias, president of indie musician management, marketing, and distribution company Thirty Tigers, pens this op-ed in The Tennessean on the need to pass trade promotion authority and finalize negotiations on free trade agreements. Says Macias, “We have recently expanded our services to all of Europe and Australia, and the ease of which we can gain access to those markets, thanks to free trade agreements, helps not only my business but the artists who we represent. When my business grows, I employ more American workers. When my artists are able to grow their careers and tour in those markets, they employ guitar techs and road managers who live and pay taxes in Nashville.”

Turning a Profit From Music Mashups — More evidence that the current legal framework for remixes works. “Dubset Media Inc. has developed technology to track how much of each song is used in any given DJ-made track or mix. It can then calculate royalties owed to artists like Lady Gaga or Jay Z whose music was sampled. The New York-based startup is in discussions with the major record labels—Vivendi SA’s Universal Music Group, Sony Corp.’s Sony Music Entertainment and Access Industries’ Warner Music Group—to license music that DJs have mixed. Such deals could pave the way for Dubset to distribute such mixes to streaming services such as Spotify.”

The Lines of Copyright Infringement Have Always Been Blurred — We’ve heard a lot about the Blurred Lines verdict this week. Here, Rick Sanders makes a number of important points about the trial and its outcome, many of which have been overlooked by the deluge of superficial analyses found elsewhere.

Twenty Years Down the Road: A Q&A With Paul Goldstein, Author of Copyright’s Highway — A great interview with copyright giant Paul Goldstein. “… it would be a serious mistake for policy makers (and I include the courts) to reflexively reach for a new exemption or an expanded fair use any time copyright appears to stand in the way of the roll out of some new technology. It would be a mistake because the characteristic impediment in all of these cases is not copyright, but the transaction costs associated with securing licenses under copyright.”

Who’s that girl? The curious case of Leah Palmer — “Ruth recently discovered that for the past three years somebody has been routinely lifting photographs of her, her family and friends from social networks, and setting up a network of fake media profiles of them – which all communicate with each other.” One of her only means of recourse is asserting her copyright interest in the photos to have them taken down, a reminder that copyright is not solely for commercial exploitation.

Contrary to the impression that some—many, in fact—information technocrats would like to convey, the new world of information technology is simply not one of bits, bytes, and pixels that have somehow been born in some new, big-bang theory of intellectual creation and are floating around in the atmosphere until captured by the magical machine and delivered in some magical fashion to some public. Intellectual creativity, in the broad sense—encompassing both original authors as well as producers; and publishers’ coordination, packaging and rational distribution—remains the domain of human actors. Respect for their efforts, labors, investment, and assurance that they will continue, is the historical role of our intellectual property laws. The new technologies may well call for new ways to ensure that copyright continues to serve this function, but the humanity of the creative process must not be lost in awe of the devices.

The one copyright issue everyone should agree on — “The Copyright Office was first established in 1897 as primarily a ministerial entity. Over time it has steadily acquired responsibilities and today is a crucial independent policy advisor to all three branches of the government and provides important guidance on copyright matters to the public. It is inconceivable that had all these responsibilities been envisioned at the time of its creation the Office would have been structured as it is now – without the political accountability and transparency leadership by a Presidential Appointee confirmed by the Senate would provide, and without independent control over its resources and planning.”

Two hearings today will look at the current state of the US Copyright Office—one in front of the House Judiciary Committee on the Office’s functions and resources, and a budget hearing by the House Appropriations Legislative Branch Subcommittee looking at the Architect of the Capitol and the Library of Congress (The Copyright Office is a department within the Library of Congress). Besides the registration of copyrights and recordation of copyright transfers and assignments—and be sure to check out the Office’s report on Technical Upgrades to Registration and Recordation released earlier this month—the Copyright Office is more broadly responsible for copyright policy and education. However, it is currently underfunded, understaffed, and faces structural and technological impediments to its mission. The witnesses at the Judiciary Committee hearing will discuss the challenges under the status quo in more detail and offer suggestions for improvement, ranging from increasing the resources and autonomy of the Office to establishing the Copyright Office as an independent agency.

The Copyright Office has evolved tremendously since it was first created 118 years ago, and I think it’s commendable that its role and status, along with its functions and resources, are being fully examined.

Centralizing Copyright

When the delegates of the Constitutional Convention in 1787 drafted the plan for a federal government, they forewent a legislature with general, indefinite powers, such as the States enjoyed, for one that had authority only according to an enumerated list of under 20 powers. One of these powers was securing the property rights of authors at the federal level because, as James Madison would explain in the Federalist Papers, “the States cannot separately make effectual provisions for” this protection. 1Federalist 43.

For nearly a century afterward, Congress played a relatively hands-off role in copyright policy. It occasionally held hearings and amended the copyright laws, but otherwise remained passive. Copyright law did require registration, but this function was administered by federal district courts.

That began to change in 1870, when Congress centralized copyright registration and deposit functions within the Library of Congress. 2Act of July 8, 1870, §§85-111, 41st Cong., 2d Sess., 16 Stat. 198, 212-16. Then Librarian Ainsworth Spofford was a staunch advocate of using copyright deposit as a means of building the Library’s collections; he lobbied heavily for bringing copyright functions entirely within the Library’s purview, saying,

Under the present system, although this National Library is entitled by law to a copy of every work for which a copyright is taken out, it does not receive, in point of fact, more than four-fifths of such publications.

The transfer of the Copyright business proposed would concentrate and simplify the business, and this is a cardinal point…. Let the whole business… be placed in the charge of one single responsible officer, and an infinitude of expense, trouble, and insecurity would be saved to the proprietors of Copyrights and to the legal profession. 3John Y. Cole, Of Copyright, Men & a National Library, The Quarterly Journal of the Library of Congress, Vol. 28, April 1971. See also A Visit to the Library of Congress.

But Spofford underestimated the amount of work that would go into administering copyright registrations. Before the end of the century, Congress created (through an appropriations bill) a Copyright Office as a separate agency within the Library, headed by a Register of Copyrights. 4Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545.

The Copyright Office Grows

The Copyright Office’s importance quickly grew. The first Register, Thorvald Solberg, proved ambitious, and established the Office as a legislative and policy expert, writing recommendations and drafting legislative proposals that would eventually become the Copyright Act of 1909. 5Abe Goldman, The History of USA Copyright Law Revision from 1901 to 1954, Copyright Law Revision Study No. 1, pp. 1-3 (1955).

The Office played an even more critical role during the 1955-1976 copyright law revision effort in producing the current Copyright Act. As Bob Brauneis explains in his testimony, the legislative process

began with a series of 34 studies prepared by the Copyright Office over a five-year period addressing every corner of copyright law and of the economics of the copyright industries. Building on the insights of those studies, Register of Copyrights Abraham Kaminstein prepared in 1961 a comprehensive “Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.” Register Kaminstein then held a series of public meetings with copyright stakeholders to discuss the recommendations of that report, and gathered written comments as well. Having gathered that input, the Copyright Office then issued a “Preliminary Draft for Revised U.S. Copyright Law” in late 1962, and in 1963 held a series of public meetings discussing sections of that draft in detail. That led to the first bill introduced in Congress in 1964, which was used as the basis for another series of public meetings held by the Copyright Office. Finally, after a second bill was introduced in 1965, Congress itself began to hold hearings on the proposed legislation.

Since the Copyright Act of 1976, the Copyright Office has played a central role in copyright law and policy: advising Congress and the Executive Branch; providing guidance to courts, copyright practitioners, and the general public; and administering copyright registrations, recordations, and deposits. It has also taken on new substantive roles, such as recommending exceptions for the circumvention of technical measures under 17 USC § 1201. And copyright policy has increasingly been addressed at an international level in venues such as WIPO and the WTO, expanding the scope of the Copyright Office’s work.

A Look at the Copyright Office

In recent decades, there have been a number of looks at the structure of the Copyright Office and administration of the copyright system. (Although it’s worth noting that Benjamin Kaplan suggested a regulatory commission with power to “adapt the statute to changing realities” when “congressional responses are apt to be late or inadequate” in his 1967 work, An Unhurried View of Copyright.)

In 1986, the Congressional Office of Technical Assessment (OTA) released a report on “Intellectual Property in an Age of Electronics and Information,” which sought to examine “the impact of recent and anticipated advances in communication and information technologies on the intellectual property system.” Among the report’s recommendations were institutional changes, ranging from intermediate changes—increasing research, coordination, regulatory, or adjudicatory functions of existing agencies, for example—to the creation of a new intellectual property agency. A joint Congressional committee held a hearing on the report on April 16, 1986, but no further legislative action resulted.

On February 16, 1993, Rep. William Hughes introduced H.R.897, the Copyright Reform Act of 1993. Among other things, the proposed bill would have made the Register of Copyrights a Presidential Appointee. This would have allowed the Register to make rules rather than requiring rules to be adopted by the Library of Congress. The Librarian of Congress, James Billington (who still serves in that capacity), opposed this move. He said in Congressional testimony,

At a time when publishing and communication are experiencing technological breakthroughs, it is particularly critical that the interests of the Library, the Copyright Office, and their constituents, be treated as mutual and complementary. The Library must be able to work hand in hand with the Copyright Office to ensure the continued collection, preservation, and protection of published and unpublished materials, including the new electronic information media that are making an increasingly important contribution to the nation’s intellectual heritage. 6Statement of James Billington, Hearings on H.R. 897: Copyright Reform Act of 1993, pg. 191, before the House Judiciary Comm. Subcomm. on Intellectual Property and Judicial Administration, 103rd Congress (March 4, 1993).

Hughes encouraged Billington to study further the effects his bill would have on the Library’s functions, and in response, Billington created an Advisory Committee on Copyright Registration and Deposit (ACCORD) to analyze these issues. Although the 20 member Committee (which included current Register of Copyrights Maria Pallante, then serving as Executive Director of the National Writers Union) did not examine the institutional changes contained within the Copyright Reform Act, it did look at registration and deposit issues.

As the communications revolution gathers momentum and the information superhighway is in its early stages, a comprehensive and reliable copyright database, available freely to the general public, is an enormous asset for a number of purposes. These matters were addressed during the ACCORD deliberations and by the individual authors of the working papers prepared for ACCORD discussions. There was consensus among ACCORD members that information obtained through registration-information bearing on authorship/dates of creation and publication, the ownership and duration of copyright, and the like can be extremely valuable not only for business transactions such as transferring rights, and obtaining permissions or licenses, but also for resolving legal disputes, providing biographical information, and so forth.

The Senate subsequently held a hearing on its companion bill, but while the legislation passed the House, it did not go any further. The issues raised by the report, however, did not disappear.

In 1996, Senator Orrin Hatch introduced an omnibus patent act which would have established a single government corporation to formulate policy and administer all forms of intellectual property: patent, trademark, and copyright. During a hearing on the bill, Hatch explained the motivation behind the change. First, he said, “The locus of copyright policymaking has shifted to the executive branch primarily because the international dimension of copyright has become dominant,” so the Copyright Office needs to be in the executive branch if it is to continue to play a leading role in policymaking. Second, Hatch noted the potential for increased rulemaking authority for the Copyright Office in the digital age—”For example, it has been suggested that the Copyright Office might administer a system of virtual magistrates for fair use and Internet access provider liability.” Increased executive powers, said Hatch, would cause problems given the Office’s current “anomalous position in the legislative branch.” Finally, Hatch said, the shift would “free the Copyright Office from the lengthy and cumbersome hiring practices of the Library of Congress.”

Register of Copyrights Marybeth Peters sharply criticized the proposal during her testimony, calling it “hasty and radical” and spoke on a number of issues such a change would raise. The move “first and foremost” would require a “fivefold increase” in registration fees, leading, consequently, to a decrease in registrations and Library of Congress deposits. Second, the move has “the potential to politicize copyright policy.” Under the Library of Congress, said Peters, the Copyright Office is not “influenced by political agendas or subject to interagency clearance.” Third, the combination of copyright with patent and trademark raises “conceptual concerns” because of fundamental differences between the two. Copyright has strong cultural, educational, and expressive policies not present in patent and trademark, and “These values may be slighted if copyright policy is wholly determined by an entity dedicated to the furtherance of commerce.”

Peters concluded by raising questions concerning the need for change and potential consequences, and said

Answering all of these questions requires consultation with the affected communities to determine their needs and to weigh their perspectives. That process has not taken place. There has been no open, public debate of the issues involved. Neither the Copyright Office nor members of the private sector participated in formulating these proposals. No representative of the author, copyright owner, or copyright user communities were given the opportunity to testify today and no further hearings are scheduled.

William Patry testified in support of the bill on a following panel, calling the current placement of the Copyright Office in the legislative branch a “historic anomaly” and arguing that if the agency is to engage in executive functions, it should reside in the executive branch. But overwhelmingly the sentiment from participants in the hearing was against the move. Statements from other copyright groups almost universally agreed with Peters’ assessment. The bill did not make it out of committee nor reemerge during later Congressional sessions.

A New Great Copyright Agency?

The challenges facing the Copyright Office only continue to grow as technology advances and copyright policy becomes more central to society. As I noted in 2015 in Copyright Law and Policy, Register Pallante has said “Evolving the Copyright Office should be a major goal of the next great copyright act.” She elaborated on the staffing, funding, and technological challenges of the Office in a 2013 lecture and a 2014 House IP Subcommittee oversight hearing.

The House Judiciary Committee hearing today will focus not only on those challenges but also look at potential solutions. These include increasing the Copyright Office’s administrative authority, shifting it to the Department of Commerce, or creating a freestanding, independent agency outside the Library of Congress. Though there is no clear consensus yet on which avenue to take, the witnesses are in remarkable agreement about the critical role the Office plays, the need to modernize it, and the deficiencies in the status quo. The benefits of modernizing the Office would be shared by authors, users, and the general public. That means that Congress is presented with a rare opportunity to take a bold step in improving the law that would not likely be divisive—something presently rare in the world of copyright.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.